RSSApple Wins: Sites Must Reveal Sources
By David Worthington | Published March 11, 2005, 9:57 PM
Friday, Santa Clara County Superior Court Judge James Kleinberg ruled that an online journalists' Internet service provider can be obligated to identify confidential sources to Apple's legal counsel.
The ruling rejected the defense's arguments that California's shield laws, which protect the anonymity of sources, apply to PowerPage because trade secrets were revealed in violation of state penal code. Kleinberg said the site's status as legitimate press was a moot point.
The legal wrangling stems from a "John Doe" lawsuit filed by Apple against Web sites, including Sean O'Grady's PowerPage, that disclosed the company's plans for a FireWire-based interface for GarageBand code-named "Asteroid".
Apple contends that its "trade secrets" were unlawfully disclosed and issued subpoenas demanding that the sites reveal their anonymous sources. The defense claims that online reporters are protected by shield laws in the California constitution and under the First Amendment guaranteeing free speech.
"The posting of Mr. O'Grady contained an exact copy of a detailed drawing of 'Asteroid' created by Apple. Apparently the drawing came from a set of slides marked "Apple Need-to-Know Confidential," the judge wrote in his decision. The circumstances under which those slides were obtained convinced the judge that O'Grady was in violation of a state statue that protects intellectual property from being disclosed.
"Compelling interest of disclosure...outweigh First Amendment rights. The United States and California Supreme Courts have understood that trade secret laws apply to everyone regardless of their status, title or chosen profession," Kleinberg wrote.
The judge interpreted California's shield law to be "unique" in that it provides "limited protection" against being held in contempt of court and does not grant special rights to news people. "Whether he fits the definition of journalist, blogger or reporter or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate valid criminal laws."
The Electronic Frontier Foundation, which represented O'Grady, was quick to respond. "We're disappointed that the trial court ignored the Supreme Court's requirement that seeking a journalist's confidential sources be a 'last resort' in civil discovery," said EFF Staff Attorney Kurt Opsahl.
"Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret. This is a broad-brush ruling that threatens journalists of all stripes," said EFF Legal Director Cindy Cohn.
When asked if ruling could set precedent that could conceivably affect other reporters, Cohn told BetaNews, "State court rulings at the lowest court level (called the Santa Clara County Superior Court) are not citable."
While the EFF may be diametrically opposed to the ruling, others accept the judge's thinking in so far as it pertains to California law.
"Based on the judge's ruling, I would conclude there is legitimate cause to assume that Apple trade secrets had been leaked. But many other vendors could make similar arguments about leaks -- the aforementioned free marketing -- if they wanted to," said Jupiter Research senior analyst Joe Wilcox.
"Apple may have won the battle, but I'm not convinced it will win the war, if the result is the alienation of enthusiasts that are the core of the Mac community. Apple also depends on the goodwill of journalists and product reviewers," noted Wilcox.
In his decision, which singled out O'Grady's PowerPage, Kleinberg wrote, "An interested public is not the same as public interest." But what is in the public's interest is a grey area and not everyone sees eye-to-eye.
"I have a broad view of what customers need to know. They need to know when a company is killing a product; altering its roadmap; or delaying the introduction of a system due to bugs. Users need to have this information to make informed decisions. And we as journalists are obligated to provide it," said Mary Jo Foley, editor of Ziff Davis' Microsoft Watch newsletter.
"The idea of potential harm is what shouldn't be limited. If you are a user of apple products and you have a limited IT budget, you will be harmed if you make the wrong decision."
The EFF says it will appeal the decision.
This is just another nail in the coffin for democracy. It is a journalist's responsibilty to accurately inform their readers of the news. This is without doubt, news and accurate, so why should they identify their sources.
I believe in this case, Apple should look at their own internal security and rectify it themselves. Seems to me they are trying to blame others for their faults.
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|Don't confuse "information" with "news". The former is pretty easy to define but the latter is arguably not as clear. If I'm playing poker and I'm trying to bluff, that's information and maybe even news. But depending on if and when the "news" is released I might not be too happy. Apple likes to hide it's cards, they don't like people to know if they've got just two pair or a royal flush.
And don't confuse democracy in this at all. Free speech - yes. The Constitution - yes. Democracy - no.
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|With a reply like that, I am even more confused now! Beam me up Scotty!
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|I hate living in this state.
Web journalists are no different than paper or television journalists.
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|Why is this a bad thing?
Apple's "secrets" were leaked out and you're saying that it's OK to just leak out information like that ?
Put yourself in their position and thing again. People never do that...
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|ahaha just becuase you can type something on the internet doesnt make you a journalist.
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|Is a "detailed drawing" a blueprint? Is it a discussion of the mechanics involved in making the product? Are there any REAL trade secrets involved or just Apple's Gigantic Proptectionist Ego? Has Apple been demonstrably sue-happy for no good reason in the past on a regular basis?
Ask yourself those questions.
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|I think rather than hunting down and prosecuting for a MINOR infraction, the person(s) who wrote the blogs, what apple SHOULD be doing is hunting down and prosecuting those person(s) who actually leaked the info. They can be tried for major offenses such as felony theft, industrial espionage, and many other federal felony offenses. Apple look inward, clean house there and then look outward.
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|Journalists? You mean like Dan Rather or Eason Jordan for instance?
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|that's what's going on. apple wants to know who leaked the info and the sites won't tell them. in order to get that info out of them they're taking them to court, but the main goal is to find out who leaked it.
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|Going beyond the issue of the ethics of leaking trade secrets (however vague or precise), I wonder what effect this might have on web sites owned by traditional reporting institutions like MSNBC, Fox, CNN, etc. If the laws are not going to cover television, radio, and the Internet with equal approach, the quality and detail of posting to each will be adjusted to suit the perceived legal risks of doing so. That's a form of censorship, but a vague one obviously. Sort of like punishing advertisers for supporting specific programming. Indirect censorship. The bigger, yet less discussed issue is that of how journalism laws are not applicable to Internet based "journalism". The ramifications could become huge.
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|thats like saying all cops are crooked because of a small handfull.
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|or a lot of cops are straight and honest because of a few handful?
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